TB7-07572

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB7-07572 Private Proceeding / Huis clos Reasons and decision ? Application to reopen / Motifs et décision - Demande de réouverture Applicant(s) XXXX XXXX XXXX Demandeur(s) Respondent(s) The Minister of Citizenship and Immigration Intimé(s) Application considered / heard at Toronto, Ontario Demande instruite à Date of Decision January 23, 2018 Date de la décision Panel Robert Bebbington Tribunal Counsel for the applicant(s) Dilani Mohan Conseil (du/des) demandeur(s) Barrister and Solicitor Counsel for the respondent(s) N/A Conseil (de l'/des) intimé(s) Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) REASONS FOR DECISION [1] XXXX XXXX XXXX (the "Applicant") asks that the Refugee Appeal Division (RAD) reopen her appeal. The RAD confirmed the determination of the RPD and dismissed the appeal. DETERMINATION [2] Pursuant to RAD Rule 49, the RAD denies this application, as the Applicant has failed to establish that there was a failure to observe a principle of natural justice when her appeal was dismissed. BACKGROUND [3] The RAD received a Notice of Appeal from the Applicant on April 19, 2017. She was appealing a decision of the RPD dated April 5, 2017 in which the RPD concluded that the Applicant was not a Convention refugee or a person in need of protection. The RAD confirmed the determination of the RPD and dismissed the appeal according to paragraph 111(1)(a) of the Immigration and Refugee Protection Act (IRPA). The RAD received an Application to Reopen the RAD Appeal on December 18, 2017. The Minister was provided with a copy of this application on December 18, 2017, but to date has not responded. DETERMINATION OF THE APPLICATION [4] The RAD denies the application to reopen the Applicant's appeal pursuant to Rule 49 of the Refugee Appeal Division Rules. ANALYSIS [5] The RAD Rules allow for the reopening of appeals in certain circumstances: 49 (1) At any time before the Federal Court has made a final determination in respect of an appeal that has been decided or declared abandoned, the appellant may make an application to the Division to reopen the appeal. (2) The application must be made in accordance with rule 37. If a person who is the subject of an appeal makes the application, they must provide to the Division the original and a copy of the application and include in the application their contact information and, if represented by counsel, their counsel's contact information and any limitations on counsel's retainer. (3) The Division must provide to the Minister, without delay, a copy of an application made by a person who is the subject of an appeal. (4) If it is alleged in the application that the person who is the subject of the appeal's counsel in the proceedings that are the subject of the application provided inadequate representation, (a) the person must first provide a copy of the application to the counsel and then provide the original and a copy of the application to the Division, and (b) the application provided to the Division must be accompanied by proof that a copy was provided to the counsel. (5) The application must be accompanied by a copy of any pending application for leave to apply for judicial review or any pending application for judicial review. (6) The Division must not allow the application unless it is established that there was a failure to observe a principle of natural justice. (7) In deciding the application, the Division must consider any relevant factors, including (a) whether the application was made in a timely manner and the justification for any delay; and (b) if the appellant did not make an application for leave to apply for judicial review or an application for judicial review, the reasons why an application was not made. (8) If the appellant made a previous application to reopen an appeal that was denied, the Division must consider the reasons for the denial and must not allow the subsequent application unless there are exceptional circumstances supported by new evidence. (9) If there is a pending application for leave to apply for judicial review or a pending application for judicial review on the same or similar grounds, the Division must, as soon as is practicable, allow the application to reopen if it is necessary for the timely and efficient processing of appeals, or dismiss the application. [6] Section 171.1 of the IRPA provides that: 171.1 The Refugee Appeal Division does not have jurisdiction to reopen on any ground - including a failure to observe a principle of natural justice - an appeal in respect of which the Federal Court has made a final determination. [emphasis added] [7] Rule 49(6) provides that the RAD must not allow the application unless it is established that there was a failure to observe a principle of natural justice (emphasis added). Rule 49(7) requires that the RAD consider any relevant factors, including those set out in the Rule. As such, while the RAD can only reopen an appeal if there has been a failure to observe a principle of natural justice, it may reject an application on broader grounds. [8] The RAD must not allow this application unless it is established that there was a failure to observe a principle of natural justice in the dismissal of the Applicant's appeal. It is for the Applicant to demonstrate that there has been a breach of natural justice or fairness. [9] In this case, the Applicant has alleged that her RPD decision and her RAD decision were based on inaccurate factual records and incompetent representation by her former counsel. She submits that these errors constitute a failure to observe principles of natural justice. [10] RAD Rule 49 sets out requirements in sections (4) and (5) that the Applicant must provide a copy of the application to the counsel and then provide the original and a copy of the application to the Division, as well as proof that a copy was provided to the counsel. Section (5) requires that the application must be accompanied by a copy of any pending application for leave to apply for judicial review or any pending application for judicial review.The RAD notes that the Application Record1 confirms the Applicant has complied with these requirements. [11] The Applicant submits that her former counsel erred by: 1) sending her with a USB drive to have the shelter workers assist with the form filling; 2) failing to thoroughly review the claim forms with XXXX prior to submission; 3) failing to review the affidavit evidence obtained by XXXX from her uncle regarding her identity prior to sending her to submit the claim form and inaccurate identity document; 4) failing to notice the error in the affidavit evidence until the night before the hearing, and then advising the client to lie about her uncle's name; 5) failing to include XXXX evidence of her training and work as a nurse in Nigeria, and in advising her to leave this information out of her Basis of Claim forms; 6) failing to conduct more detailed questioning of XXXXs history in order to establish identity at the RPD hearing; 7) failing to provide XXXX proof of making efforts to obtain her Nigerian passport in the RAD appeal record, despite having received this proof prior to filing the appeal record, and failing to highlight these efforts on appeal; and 8) failing to advise XXXX to get new identity documents and proof of her father's death and her deceased son's birth in support of her appeal. [12] The RAD has reviewed the Applicant's submissions, the RPD record, the RAD decision, as well as the Response of the Applicant's former counsel.2 [13] The RAD has reviwed the Applicant's arguments: 1) The Applicant alleges that she was sent to the shelter with a USB stick and not assisted by counsel in preparing the Basis of Claim (BOC) document and other immigration documents related to her refugee claim; the RAD notes that counsel has provided copies of the Generic Application Form for Canada (IMM0008) and the BOC document provided by the Applicant, which he states were printed at his office and hand filled by the Applicant. The RAD notes these are not the same copies of the IMM0008 and BOC document that exist in the RPD record,3 which confirms that former counsel Okoronkwo participated in preparing the forms. The Applicant argues that counsel Okoronkwo ought to have reviewed the forms and should not have indicated that he assisted in their preparation if that was not true. The RAD finds on its review of the evidence that it would appear that counsel Okoronkwo did prepare and review the Immigration related forms as well as the BOC document. The Applicant's argument must fail. 2) The Applicant alleges that her former lawyer only brought the inconsistency in the statutory declaration, where her uncle states he is her father, to her attention on the evening prior to the RPD hearing. The RAD notes, as did counsel Okoronkwo, that the Applicant's statements in her personal affidavit in the Appellant Record4 indicate she became aware of this problem in November 2016, while her statement reflected in the Application to Reopen states that she learned about this information on the evening of February 28, 2017. The RAD finds the Applicant's statements about when she discovered this information are contradictory and inconsistent. The RAD finds this aspect of the Applicant's allegations are not credible. 3) The Applicant alleges that counsel Okoronkwo failed to notice the error in the affidavit from her uncle regarding her identity prior to sending her to submit the claim form to the RPD. The Applicant further submits that her former counsel suggested that she lie about her uncle's identity as her father. The RAD notes in its review of the record that the Applicant did provide the explanation that her uncle, XXXX XXXX XXXX XXXX was her father's brother, had the exact same name as her father, and had taken over the role of the her father after he died in 2005. The RAD finds it reasonable to believe that it would make little sense for her counsel to direct her to be untruthful about identity issues, which would potentially lead to the RPD or RAD requesting documentation to support the testimony. The RAD finds this allegation by the Applicant is not credible. The RAD additionally notes that former counsel Okoronkwo has provided a statement that he brought the problem in her uncle's declaration to the Applicant's attention on February 17, 2017. He further provided documentation5 to confirm that he consulted with the the Applicant at 6:21 pm on February 17, 2017 and sent her supporting documents by fax to the RPD at 7:20 pm the same day. Hence, the RAD finds the Applicant's allegation that she was sent to submit the inaccurate forms to the IRB without her knowledge is not credible. 4) The Applicant alleges that counsel Okoronkwo failed to include the Applicant's evidence of her training as a nurse in Nigeria and erred in advising her to leave this information out of her Basis of Claim forms. Counsel Okoronkwo submits that he questioned the Applicant about these documents and the Applicant provided evidence that was inconsistent with her having twelve years of education. She further indicated to her former counel that the documents were aquired in order to enhance a visa application and that they were not necessarily genuine. Counsel Okoronkwo states that he chose not to disclose documents that were likely not genuine. The RAD finds in this circumstance that it would be unethical and make little sense to knowlingly submit fraudulent documents in support of the Applicant's refugee claim. The RAD finds the Applicant's allegations are without merit. 5) The Applicant alleges that counsel Okoronkwo failed to conduct more detailed questioning of the Applicant in order to establish her identity at the RPD hearing. The RAD has reviewed the record as well as the audio recording of the hearing. The RAD finds the RPD questions were fulsome and thorough in respect of the Applicant's identity. The RAD notes that counsel Okoronkwo did question the Applicant in an attempt to elicit additional testimony and essentially fill in any gaps. The RAD further notes that there is no need for counsel in his examination of the Applicant to repeat or cover information that has already been addressed in the hearing. The RAD finds this aspect of the Applicant's argument is without merit. 6) The Applicant alleges that counsel failed to submit proof of her efforts to obtain a Nigerian passport in the RAD appellant record, despite having received this proof prior to filing the appeal record, and failing to highlight these efforts on appeal. The RAD notes that its review of the evidence indicates that the documents6 demonstrating the Applicant had taken steps to acquire a new Nigerian passport were sent to her former counsel in very close proximity to the submission of the RAD appellant record (May 10, 2017 from the Applicant to her former counsel, May 11, 2017 when her former counsel submitted the Appellant Record to the RAD and May 12, 2017 when the RAD acknowledged receipt). The RAD finds that it is reasonable to believe that these transactions were occurring close to simultaneously. Counsel Okoronkwo states in his response document that he was aware that the Applicant was to attend an interview for her Nigerian passport in Ottawa on May 16, 2017. He states that he told the Applicant to inform him and bring the passport to his office when it was received and that he would submit the evidence to the RAD under the RAD Rule section 29(2) application for disclosing additional documents. The RAD finds it makes little sense to submit to the RAD that additional documents might be forthcoming unless an Apellant was making a request to delay the perfection of the Appeal. The RAD further notes in its review of the evidence before it that no persuasive evidence has been disclosed to confirm that the Applicant does indeed possess a new Nigerian passport. The RAD additionally finds that the RPD decision clearly stated that the Applicant had not provided sufficient persuasive documentation to ascertain her identity as a Nigerian national. The RPD indicated that the Applicant should take steps to acquire a new Nigerian passport and any other documents to support her identity. The RAD notes that as much as the Applicant was assisted by experienced counsel in her refugee claim, the onus to provide documentation to support her claim lies with the Applicant and not her counsel. The RAD finds the Applicant was given ample notice that obtaining a Nigerian passport was important to her claim. The RAD finds this aspect of the Applicant's allegations are without merit. [14] The RAD has reviewed the Applicant's submissions contained in this Application to Reopen the RAD appeal, as well as the RPD and RAD record. The RAD finds that the Applicant has failed to establish that there was a failure to observe a principle of natural justice when her appeal was dismissed. It is for the Applicant to demonstrate that there has been a breach of natural justice or fairness, and the RAD finds that has not been done. The RAD, therefore, cannot allow this application. DECISION [15] This application is denied. (signed) "Robert Bebbington" Robert Bebbington January 23, 2018 Date 1 Application to Reopen, Received December 18, 2017. 2 Affidavit of Pius Lekwuwa Okoronkwo, Received December 19, 2017 and Pius L. Okoronkwo's Response to Appellant's Allegations, Received December 19, 2017. 3 Appellant's Record, Submitted with Application to Reopen, Received December 18, 2017, Section 3, Tab A, Basis of Claim (BOC) Form, pp. 70-83 and Generic Application Form For Canada, IMM0008, pp. 132-141. 4 Appellant's Record, Submitted with Application to Reopen, Received December 18, 2017, Section 3, p. 16. 5 Affidavit of Pius Lekwuwa Okoronkwo, Received December 19, 2017, Exhibits B and C. 6 Appellant's Record, Submitted with Application to Reopen, Received December 18, 2017, Section 3, Tab F, p. 154. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.21.03 (May 30, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB7-07572